Setting aside a default judgement Flashcards
What is the first mandatory ground for setting aside a default judgement?
The court is required to set aside a default judgement that was wrongly entered before the defendant’s deadline had expired for filing an acknowledgement of service or defence
What is the second mandatory ground for setting aside a default judgement?
The court is required to set aside a default judgement entered after the claim was paid in full
What will the court take into account when determining whether to set aside a default judgement?
The court will take account promptness (how prompt the defendant has been) of filing an application to set aside a default judgement. The defendant must issue the application as soon as he becomes aware of the default judgement
Why does the court take into account promptness of the defendants application to set aside default judgement?
This furthers the overriding objective which recognises that cases should be dealt with expeditiously and fairly
What is the first discretionary ground for setting aside a default judgement?
The court can set aside or vary a default judgement where the defendant has a real prospect of successfully defending the claim
What is the second discretionary ground for setting aside a default judgement?
The court can set aside or vary a default judgement where it appears to the court that there is some other good reason why the judgement should be set aside or varied; or the defendant should be allowed to defend the claim
What other factors will the court take into account when adjudicating on the discretionary grounds?
The court will apply a three stage approach set out in the case of Denton v TH White (2014)
What is the first stage of the Denton three-stage approach?
To identify and assess the seriousness or significance of the relevant failure. If breach was not serious or significant then relief would normally be granted here without considering stage two or three in too much depth
What is the second stage of the Denton three-stage approach?
To consider why the failure or default occurred
What is the third stage of the Denton three-stage approach?
To evaluate ‘all the circumstances of the case, so as to enable [the court] to deal justly with the application’
Does the defendant only need to prove one of the grounds of the three-stage approach?
The rule states that this is the case, however in practice the defendant will usually have to show a defence with a real prospect of success at trial in order to persuade the court to exercise its discretion
What will the court do in scenarios where neither party is at fault in the application process?
The court may accept there is good reason and will likely set aside the default judgement to instead make an order for costs in the case.
What happens if the court rejects the reason and the default judgement is set aside of the ground of a defence with a real prospect of succeeding at trial?
The court will likely order the defendant to pay the claimants costs within 14 days (this way the default judgement is set aside, but the defendant is ordered to pay costs as a ‘punishment’ for not acting sooner and causing a default judgement application to be lodged)
What are the three main orders the court may make in response to an application to set aside a default judgement?
The court can set aside the default judgement, refuse the application or make a conditional order
What is the condition likely to be if the court orders a conditional order?
The defendant pays into court the amount of the claim or such amount as he can reasonably afford, or the default judgement stands
